The ancient Greek sceptic, Pyrrho of Elis (c. 360 – c. 270 BCE), was the first philosopher to emphasize the frailty of human judgment: We should never believe anything without hard evidence. And since that evidence is hard to come by, he supposed, we should just suspend judgement on everything. Rumour has it that his friends had to follow him around to stop him walking off cliff faces, or into the path of oncoming wagons. This was the only way for him to survive, since he didn’t believe in anything (- including what he saw with his own eyes).
When working out whether to implement predictive coding during Discovery processes, we need to assess the evidence for this proposal.
Perhaps the most important case setting out the evidence for predictive coding is the United Kingdom case Pyrrho Investments Limited v MWB Property Limited  EWHC 256 (Ch) (‘Pyrrho Investments’). In this update I set out the evidence in support of predictive coding as made out in that case.
In Pyrrho Investments, the UK courts first considered the reasonableness of ‘predictive coding’ during ediscovery. In that case, Master Matthews set out 10 factors to explain why predictive coding was reasonable in that situation:
Master Matthews was clear in Pyrrho Investments that his decision turned on the specifics of the case that came before the bench, and could not be turned into a universal rule. Nevertheless, the decision has been influential in other courts in the United Kingdom and Australia, and is a useful summary of when predictive coding can prove beneficial.
The wisdom of this approach has been backed up by the explicit support for predictive coding in various forms of court guidance in the UK (Disclosure Review Document, question 14), Australia (SC Practice Note: Technology In Civil Litigation, clause 8.7) and New Zealand (High Court Rules 2016, Schedule 9).
Courts appear to be less sceptical about the benefits of predictive coding than many lawyers – and certainly less than some Ancient Greeks.